By Tibor Machan: Freedom New Mexico columnist
In a wide-ranging review essay of Amartya Sen’s recent ambitious book, “The Idea of Justice,” Moshe Halbertal, a philosopher from the Hebrew University, unleashes arguments against the right to private property that are supposed to be even stronger than those Sen himself offers.
Sen regards this right as a strong one but not decisive, so some considerations can be morally powerful enough to overturn it. To block even a moderately friendly view of the right to private property, professor Halbertal writes:
“Let us assume that … at stake for distribution is a rate medicine that Clara, the brilliant and productive child, somehow managed to invent. She is willing to provide the medicine to Anne, who is very sick, but only for an outrageous compensation.
“If she does not get her coveted (medicine), then Anne will die; and nobody — this is the libertarian claim — can take the medicine away from her, since she has ownership rights as a producer.
“In such a story, it seems clear that sticking solely to the libertarian approach to ownership rights, regardless of the outcome, is wrong. Even if we assert that there are such rights, surely, they should not be absolute….”
This is certainly not the first time the right to private property has been challenged along such lines. The needs of others have always seemed morally superior to some, vs. the rights of those who can fulfill those needs without drastic loss to themselves.
And in certain dire circumstances even libertarians will grant that a one-time theft should be morally acceptable provided efforts are made later to compensate for it.
What the libertarian — or most of them, since they are a diverse lot themselves — insists upon is that a legal system make no systemic allowance for such takings. Though it is understandable that the takings would occur on rare — emergency — occasions, what is completely wrong is to build into a legal system this acceptability.
The case Halbertal offers has some problems to start with, though relatively minor. No one denies, libertarian or otherwise, that somebody “can take the medicine away.” It is not whether they can but whether they are morally (and should be legally) justified to do so. Criminals, after all, perpetrate such takings all the time, when they murder, rape, kidnap and steal.
Rights violations are possible but not justified, according to libertarianism.
More important is the way Halbertal misunderstands what libertarian political philosophers aim to do when they lay out a proper legal system. They aren’t discussing ethics or morality but politics or law. They are investigating what system of principles should govern a human community, what constitutional provisions should be included in a just system.
This is a clear case of the perfect being the enemy of the good. Yes, Clara may have to be tolerated in her greed and lack of generosity, but that is because the system in which one is free to be greedy and ungenerous is superior to one that aims to impose, by means of government — thus risking tyranny and undermining morality — the only right solution.
So it would appear that a system of law in which the right to private property is fully protected is better than one in which exceptions are permitted, thus leaving it open to government not by law but by men who would ultimately be responsible to weight all the alternatives based on their intuitions, something Halbertal appears to grant at one point in his review essay.